Is public records law in jeopardy?
The Ohio Democratic Party announced another lawsuit last week, this time against the Ohio Department of Education for a failure to release text messages between the agency and state school board President Debe Terhar.
The latter has been the focus of public attention in recent weeks after reposting an image of Adolph Hitler and an erroneous quote about gun control on a social media site. She apologized to the state board last week and survived a vote to remove her from her leadership post.
The brouhaha over the incident may die down, but you can be sure the minority party in state politics is going to continue to submit public records requests to Republican office-holders and GOP-headed agencies, mining for political gold that could be spent in future election cycles.
Gov. John Kasich and others have complained publicly about the practice. To paraphrase the governor, election losers file voluminous records requests and lawsuits when they don’t get their way.
Again, that’s a paraphrase. I’m not wading into the propriety of our top two political parties’ maneuverings.
But it’s fully proper for any Ohioans to request and gain access to records created by elected or appointed officials whose paychecks come from our pocketbooks.
It would be fully improper for our elected officials to attempt law or rule changes to limit access to public documents as a result of requests they deem frivolous.
The topic was broached during a panel discussion at the Ohio Newspaper Association’s annual convention in suburban Columbus last week.
Part of the issue relates to technology — there are a lot more electronic records today compared to years past.
“It is a different world,” said Attorney General Mike DeWine. “I think we have to acknowledge that. What used to be communicated by letter but also what used to be communicated orally is now communicated by email. That creates great, frankly, opportunity for the news media to get more information.”
Those electronic records should be easier for state agencies to compile, but the volume of requests often delay distribution.
“It’s not only a great opportunity for you all to find out what’s going on, it’s also a great opportunity for one party to harass the other party,” DeWine said. “That’s just what goes on. ... We have standing requests that go out. ... All they’re trying to do is find that one email, that one thing to embarrass the incumbent office holder. I’m not saying that’s bad ... The goal should be how to figure out how do we deal with that.”
That’s likely something that lawmakers will consider, DeWine said.
That’s also likely something that has the potential to unnecessarily hamper access to public records.
“... Ohio public records law, which is as I said, predicated on the inarguable proposition that public records are the public’s records and that the incidental custodians of them at any particular time, whether it be a civil servant or an elected official... they operate as trustees for all of us in the custody and handling of those records,” said First Amendment attorney Fritz Byers. “A law that is predicated on that grants all of us the right ... [of] access to the records.”
He added, “The problem I think the legislature will face is that voluminous requests don’t change the fact that we have a right to these records. It doesn’t matter how many of them there are. Theoretically, if indeed the records belong to the public, we have the right to inspect every one of them and, if we pay an appropriate charge, to get a copy of them. ... The custodians of the records are holding our records.”
DeWine added, “Frankly, we find no way that it’s consistent with the spirit of the law of open records to make a distinction based on who is requesting, for whatever good or bad motives they might have. Everybody has to be treated the same, and the same way on the volume. ... If they’re entitled to it... we see no logical way [to limit their requests], no criteria to be created.”
Marc Kovac is The Vindicator’s Statehouse correspondent. Email him at firstname.lastname@example.org or on Twitter at OhioCapitalBlog.